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D'Souza (R.E.) Vs. Regional Inspector of Factories and Anr. (21.02.1968 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1968)IILLJ473Ker
AppellantD'Souza (R.E.)
RespondentRegional Inspector of Factories and Anr.
Cases ReferredS. Palantappa Mudaliar v. Additional First Class Magistrate
Excerpt:
.....what clearly emerges is that the main features or identifying marks that distinguish a worker from an independent contractor are that the latter is not controlled by employer regarding the manner in which the work allotted to him is to be done; ) 11. the counsel has cited a few other decisions as..........that this contains the nature; manner, etc., of the work that is being done and the type of the workers' working there, their remuneration, etc. this document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the might, that the women and girls of the locality, who form a 'casual heterogeneous, miscellaneous and irregular group,' come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours or work, nor is there any control by the petitioner over their regularity and attendance or of the nature; manner or quantum of their work. the same workers, after finishing the work in the premises of the petitioner, go to other similar premises in the.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The petitioner in these cases is the same; and the result of the second case will follow the result of the first case.

2. The petitioner has been convicted under Section 92 of the Factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief Inspector of Factories, for failing to apply for registration and grant of licence for the factory and also for failing to maintain a muster-fell of the workers employed in the factory in one case; and for failing to give attendance cards to every person employed in the factory in the other case. He has been sentenced to pay a fine of Rs. 20 in each case. He has also been directed under Section 102 of the Factories Act to rectify the defects within a specified period.

3. In revision, the counsel, of the petitioner has contended that no manufacturing process is being carried on in the premises; and that the persons working there are not workers under the Factories Act.

4. The work done in the premises is the peeling, washing, cleaning, etc., of prawns brought there in lorries. The modus operandi of the work and the type and nature of the workers doing the work are given in ex. P.4, a letter sent by the petitioner to the Inspector of Factories. This document has been marked at the instance of the prosecution; and it is admitted that this contains the nature; manner, etc., of the work that is being done and the type of the workers' working there, their remuneration, etc. This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the might, that the women and girls of the locality, who form a 'casual heterogeneous, miscellaneous and irregular group,' come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours or work, nor is there any control by the petitioner over their regularity and attendance or of the nature; manner or quantum of their work. The same workers, after finishing the work in the premises of the petitioner, go to other similar premises in the locality; where other lorry-loads of prawns are taken. In other words, if more prawns are caught at a particular time, they are brought and distributed among several premises like the petitioner's and the local women and girls collect at the several premises on different occasions, and the owners of the several premises do not have any control over the manner of quantum of work these women and girls do. The rates of remuneration naturally depend upon the quantity of prawns available, the number of women and girls that come to do the work, the hour of the day or the night when the catches arrive, etc., Sometimes, for days so work is done in the premises.

5. The first question for consideration is whether the work done in the premises of the petitioner, viz., peeling, washing, cleaning, etc., of the prawns, is a 'manufacturing process' coming within Section 2(k) of the Factories Act. Under Section 2(k) 'manufacturing process' is defined, inter alia as

any process for making, altering, repairing, ornamenting, finishing, packing, oiling washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale transport, delivery or disposal.

The counsel of the petitioner argues that the peeling, washing, etc., of prawns done at the premises is met with a view that the prawns might be used, sold transported, delivered or disposed of. He argues that the purpose of the work is only to send the prawns to the cold storage plant nearby owned by another person. I do not think this contention has any force. The prawns are intended for use or sale or other disposal after they are peeled, washed etc., and preserved at the cold storage plant. It may be that the petitioner is doing only a part of the process, which ultimately ends in the sale or use or disposal of the prawns. But that does not mean that the work he is doing is not with a view to the sale or use or disposal of the prawns. Therefore, the work done in the premises of the petitioner is certainly a 'manufacturing process.'

6. The more important question is the next one, viz., whether the women and girls who assemble at the premises and do the peeling, washing, cleaning, etc., are 'workers' coming within Section 2(k) of the Factories Act. 'Worker' is defined by Section 2(1) as

a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or promises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.

The plea of the counsel of the petitioner is that the women and girls who dot he work are not 'workers' coming within the aforesaid definition but are 'independent contractors.' In support of this plea he has cited a few decisions.

7. The first decision is Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957-I L.L.J. 477. The case arose under the Industrial Disputes Act : still, the decision applies to a case under the factories Act as well. Bhagwati, J., has observed in the said decision that the essential conditions of a person being a workman is that he should be employed to do the work in the industry, in other words, there should be an employment of his by the employer and there should be the relationship between the employer and him as between employer and employee or master and servant. The learned Judge has further observed that the prima facie test for the determination of such relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do, but also the manner in which he shall do his work. Bhagwati, J., has also pointed out that the nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business, and the correct method of approach would to consider whether there was due control and supervision by the employer having due regard to the nature of the work : the mere fact that a person is paid not per day but by the job does not make a person any the less a workman; the question whether the relationship is one as between employer and employee or between master and servant is a pure question of fact : the board distinction between a workman and an independent contractor lies in that while the former agrees himself or personally to work, the latter agrees to get other persons to work.

8. The next decision cited is Chintaman Rao and Anr. v. State of Madhya Pradesh 1958-II L.L.J. 252. That was a case under the Factories Act ; and Subha Rao, J., who spoke for the Court has observed that a contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their central in respect to the details of the work. The learned Judge has pointed out that there is a clear-out distinction between a contractor and a workman; and that the identifying mark of the latter is that he should be under the control and supervision of the employer in respect of the details of the work. Subha Rao, J., has followed the earlier decision of the Supreme Court already referred to and has observed that the prima facie test for determination of the relationship between the employer and the employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do, but also the manner in which he shall do his work.

9. Yet another decision of the Supreme Court in State of Kerala v. V.M. Patel 1961-I L.L.J. 549, where Hidayatullabh, J., has pointed out that an independent contractor is charged with a work, and has to produce a particular result, but the manner in which the result is to be achieved is left to him; a servant, on the other hand, may also be charged with a work and asked to produce a particular result, but the manner in which the result is to be achieved is left to him; a servant, on the other hand, may also be charged with a work and asked to produce a particular result, but is subject to the directions of the master as to the manner in which the result is to e achieved. This again, I would point, out was a case under the Factories Act.

10. From these decisions what clearly emerges is that the main features or identifying marks that distinguish a worker from an independent contractor are that the latter is not controlled by employer regarding the manner in which the work allotted to him is to be done; and that he seed not do the work personally, but may get it done by employing others. With this principle in mind if the facts of the present case are considered it will be apparent that the women and girls who assemble and do the work when a catch of prawns is brought to the premises of the petitioners are not 'workers' coming within the definition of Factories Act. The petitioner does not insist as to who should do the job or how it should be done; he only wants the work to be done for the agreed remuneration without spoiling the prawns i.e., within a short time. (A quantity of prawns is taken for peeling, cleaning, washing, etc., by a particular individual for a fixed remuneration, and that individual, with the assistance of others whom he employee, finishes the job as quickly as possible.)

11. The counsel has cited a few other decisions as well. But I do not propose to refer to all of them; and I shall refer only to the decision of Balakrishna Ayyar, J., of the Madras High Court in S. Palantappa Mudaliar v. Additional First Class Magistrate, Kulttalai 1958-II L.L.J. 744 and to the decision of a Division Bench of the same High court in In re M. Rainaswami Mudaliar 1959-I L.L.J. 631. Both the decisions were under the Factories Act; and Balakrishna Ayyar, J., has pointed out in the first decision that in the case of a manufacturing process carried on in a factory, the process normally calls for a large measure of co-ordination between various sections inside a factory and between various individual workers even inside the same section; that the management of a factory may properly require that certain hands should do some particular work and not some other work; and that the management may also have to tell the hands how they are to do that work. The learned Judge has concluded by saying that regard being had to actualities, a worker in a factory is normally liable so constant and close supervision. Form this decision, it is clear that the control in a factory is quite close and constant, not only as to what work the worker should do, but also as to how he should do it; and such control is lacking in the case before me. In the Division Bench ruling, Panchapakesa Ayyar, J., has observed that where the owners of certain weaving sheds had their weaving done by 'miscellaneous, heterogeneous and irregular piece-workers' and the owners exercised so supervision or power of control over them in relation to the kind of work done and there was no obligation on the part of the owners to provide work for them, etc., there was no contract of service between the owners and the workers which was essential to make the latter 'workers' within the meaning of the definition in the Factories Act. The women and girls who undertake to do the work in the case before me are not controlled by the petitioner as to how they should do the work. Of course, by undertaking to do a job on a piece-rate basis, the worker does not cease to be a worker and become an independent contractor. As pointed out by the Supreme Court, the question whether in a particular case the worker is a worker or an independent contractor is a question of fact which has to be decided in the circumstances of the case having regard to the nature of the work. From the materials available in Ex. P. 4; what appears is that the women and girls who come to do the peeling, cleaning etc.; are not being controlled in the manner they would be controlled if they were workers in a factory. Therefore, the conclusion of the lower Court that the women and girls who collect and do the work at the premises of the petitioner are workers coming within the Factories Act does not appear to be correct.

12. As already stated at the commencement of this judgment, the result of both the cases will depend upon the conclusion on this question.

13. Now that I have found that the women and girls are not workers but independent contractors, the criminal revision petitions have to be allowed, though I have agreed with the lower Court that the work that is being carried out in the premises is manufacturing process. The revision petitions are allowed; and the convictions and sentences passed by the lower Court are set aside. The fine, if paid, will be refunded.


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